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Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community

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Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community ISLANDS OF EFFECTIVE INTERNATIONAL ADJUDICATION: CONSTRUCTING AN INTELLECTUAL PROPERTY RULE OF LAW IN THE ANDEAN COMMUNITY By Laurence R. Helfer, Karen J. Alter, and M. Florencia Guerzovich* Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate for- eign investment, and harmonize national laws.1 Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial sys- tems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador, Peru, and Venezuela—have failed to live up to their potential as South America’s second largest trading bloc.2 The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most com- mentators have ignored the Andean Community or dismissed it as a failure.3 * Professor of Law and Director, International Legal Studies Program, Vanderbilt University Law School; Asso- ciate Professor of Political Science, Northwestern University; and PhD candidate, Department of Political Science, Northwestern University; respectively. We are grateful for the financial support provided by the Center for the Americas at Vanderbilt and the Northwestern Dispute Resolution Research Center, which funded field research in Quito, Lima, and Bogota´. For helpful comments, we thank Graeme Austin, David Boyd, Gabriella Blum, Rachel Brewster, Daniel Drezner, Martin Flaherty, Diana Rodrı´guez Franco, Darren Hawkins, Thomas Lee, Katerina Linos, Arnulf Becker Lorca, Gerald Neuman, Kal Raustiala, Osvaldo Saldı´as, Christopher Whytock, Ingrid Wuerth, and the participants in the Fordham International Law–International Relations Colloquium, the Harvard Law School Faculty Workshop, the Harvard International Law–International Relations Workshop, the Tufts Inter- national Law–International Relations Seminar, the Texas Law School faculty workshop, and the Vanderbilt Roundtable on the Law and Politics of International Cooperation. Gilda Anahi Gutierrez, Elena Herrero-Beau- mont, Karla Quintana-Osuna, and Rebecca Stubbs provided superb research assistance. 1 Andean Subregional Integration Agreement, May 26, 1969, 8 ILM 910 (1969) [hereinafter Cartagena Agree- ment]. 2 The composition of the Andean integration project has shifted over time. The five founding members of the Andean Pact in 1969 were Bolivia, Chile, Colombia, Ecuador, and Peru. Venezuela joined the group as a sixth mem- ber in 1973. Chile withdrew in 1976 after the coup by Augusto Pinochet. In 2006 President Hugo Cha´vez withdrew Venezuela from the Andean Community, and Chile rejoined it as an associate member. 3 See, e.g.,WALTER MATTLI,THE LOGIC OF REGIONAL INTEGRATION 12, 42 (1999) (characterizing the Andean Pact as one of several “integration schemes [that] have failed at the implementation stage” because their “stated integration goals and subsequent achievements were far apart”); KATRIN NYMAN METCALF &IOANNIS E. PAPAGEORGIOU,REGIONAL INTEGRATION AND COURTS OF JUSTICE 21–23 (2005) (discounting the achievements of the Andean Community and emphasizing its “perpetual internal crisis,” including recent political schisms involving Venezuela and Bolivia); Nora Anton, Bolı´var’s Dream Come True? Regional Integration and Development in the Andean Community 1–2 (Master Thesis, European Studies, University of Mu¨nster, 2006) (stating that “most political and academic discourse on the Andean Community agrees [that the] integration process has, up to now, not been very ‘successful’, and quite often it is called a complete failure”). However, in several recent works Latin American legal scholars and attorneys analyze the Andean Community’s legal structure and the activities of the Andean Tribunal of Justice. See, e.g.,JORGE ANTONIO QUINDIMIL LOPEZ´ , INSTITUCIONES Y DERECHO DE LA COMUNIDAD ANDINA (2006); MARCEL TANGARIFE TORRES,DERECHO DE LA INTEGRACION´ EN LA COMUNIDAD ANDINA (2002); Mauricio Baquero-Herrera, The Andean Community: 1 2 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 103:1 Yet the Andean Community has achieved remarkable success within one part of its legal sys- tem. It is not widely known that the Community’s judicial arm, the Andean Tribunal of Justice (ATJ or Tribunal), is the world’s third most active international court, having issued over four- teen hundred rulings to date.4 The ATJ is less active than the European Court of Human Rights and the European Court of Justice, but busier than the more intensively studied International Court of Justice, the institutions of the World Trade Organization (W TO) dispute settlement system, and other international courts and tribunals.5 Although activity is not the same thing as effectiveness, the ATJ’s caseload suggests that the Andean legal system provides a tool for litigants to protect their rights and interests—particularly for disputes relating to intellectual property (IP)—a subject that dominates more than 90 percent of the ATJ’s docket. Within this single issue-area, the ATJ is both active and effective.6 Its rulings have helped to establish intellectual property as a rule-of-law island in the Andean Community and to ensure that legal rules—rather than power, political influence, or bribery—shape decision making by state actors.7 Within the IP rule-of-law island, national judges, administrative offi- cials, and private parties participate in ATJ litigation and conform their behavior to Andean IP rules. In the vast seas surrounding this island, however, Andean rules remain riddled with exceptions, underenforced, and often circumvented by domestic actors. Our larger theoretical interest lies in identifying how international institutions, including international tribunals, can help to build an effective rule of law. The ATJ’s success in building an effective Andean legal system—albeit only within a limited policy space—is all the more remarkable given the weakness of national legal systems in the states subject to the Tribunal’s jurisdiction. When we began our research, we had low expectations of the ATJ. Not only have Andean countries faced decades of economic and political instability, they have never had Finding Her Feet Within Changing and Challenging Multidimensional Conditions,10LAW &BUS.REV.AM. 577 (2004); Ce´sar Montan˜o Galarza, Constitucio´n ecuatoriana e integracio´n andina: La situacio´n del poder tributario del Estado, in 2004–I ANUARIO DE DERECHO CONSTITUCIONAL LATINOAMERICANO 949 [hereinafter ANUARIO]; Ricardo Vigil Toledo, La consulta prejudicial en el Tribunal de justicia de la Comunidad andina, 2004–I ANUARIO, supra, at 939; Jorge Luis Sua´rez Mejı´as, Integracio´n y supracionalidad en la Comunidad andina proceso decisorio, sistema jurisdiccional y relacio´n con los derechos nacionales (PhD thesis, Universidad complutense de Madrid, 2006). 4 The full texts of judgments of the ATJ are available, in Spanish only, on the Web site of the Andean Community. Procesos del Tribunal de justicia andino, at Ͻhttp://www.comunidadandina.org/Ͼ (follow “Documentos Oficia- les” hyperlink; then follow “Procesos del Tribunal de Justicia” hyperlink). 5 The two most active international courts in terms of number of cases decided are, first, the European Court of Human Rights and, second, the European Court of Justice (ECJ) and its Court of First Instance. See Karen J. Alter, Private Litigants and the New International Courts,39COMP.POL.STUD. 22, 26–27 (2006). 6 We define effectiveness as the degree to which international rules or tribunal rulings produce “observable, desired changes in behavior.” Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation,32 CASE W. RES.J.INT’L L. 387, 394 (2000) (citing numerous international relations scholars who define effective- ness in these terms). 7 We follow a narrow, formal definition of “rule of law” that requires “the government [to] be ruled by the law and subject to it.” JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW 210, 212 (1979). This definition stresses the “certainty and predictability of governmental action...[and the] actual equality of legal treatment” in “relations between citizens[,] and between citizens and their government.” Robert S. Summers, A Formal Theory of the Rule of Law,6RATIO JURIS 127, 131, 129 (1993). The antithesis of the rule of law, according to this definition, exists where public officials or economic or political elites employ extralegal channels of influ- ence—including bribery and corruption—to achieve preferred outcomes or policies. See Bruce Ackerman, The New Separation of Powers, 113 HARV.L.REV. 633, 694 (2000) (“A failure to control [corruption] undermines the very legitimacy of democratic government. If payoffs are a routine part of life, ordinary people will despair of the very idea that they, together with their fellow citizens, can control their destinies through the democratic rule of law.”). 2009] ISLANDS OF EFFECTIVE INTERNATIONAL ADJUDICATION 3 strong domestic rules of law or national judiciaries.8 The reality that the ATJ is effective, but only within a single issue-area, makes the Andean experience of broader theoretical interest. How did a region with weak legal institutions develop a stable rule of law for IP rights? Why have Andean judges and officials been able to induce widespread respect for Andean rules in intellectual property but not in other areas of regional integration? And what does
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